| Show plea piea aleain in abatement lilt in the h oase Case MA K 1 of the people vs bri bangham 9 hall hail 9 ti A THE TERRITORY OF bf UTAH lw SJ IN TUB ehmet of said territory c 1 yi i REGULAR SEP bep SEPTEMBER vember rEMBER TERM terr thereof A D 1871 vt B mckeav mckea JUDGE T moe TOE lle TOB an inthe the j TERRITORY OF UTAH against I 1 EBiG iram yrAm senior J and the said Brig brigham harn young who Is complained of fortne forthe for the lne crime of openly and nobort I 1 bously lewdly and lasciviously associating and cohabiting with women not being married to them in his bis own proper person I 1 erson cometh into court and baving baying beard deard raer frd lne ine tue the complaint read says that he can con only be indicted for the crime aforesaid by a grandeury grand grana jury sury daly duly selected drawn sum bum summoned onea and according to the laws of the territory of U utah tall tali that said grand jury by whom said pretended indictment was found was not drawn according to eald layr law but an open venire was issued dy by order of the hon james B mckeg mckean D judge of sald said Third district court which order waa was in words and figures as follows folio WE to wit jb uin win a 8 WALKER clerk rathe ef tha the third dis mot couro court in its and forthe foz for vw territory cf utah sm SIR itis it Is hereby ordered that you issue to the united states marshal for the said territory a venire ventre commanding him to summon irom from the body of the third Jud judicial iciel district or of the said sald territory eighteen good and lawful men to act aa as petit jurors and twenty three good lna and lawful men to act aa as grand jurors at al a session or term of the said court to be held in the court room in salt lake city on monday the day of september instant and that you make the same returnable then and there at 10 in the forenoon of that day and thereof ian jau not witness my hand at salt bait lake city this lith day of september A D 1871 JAS JAB B mclean mcdean judge of the ad district court which said order was endorsed as follows order received and ventre venire issued sep hop lith uth ML wm S WALKER clerk that eald said william S walker clerk of said court issued a ventre venire on said order in words and fugures figures as follows follOW St viz COURT COVET THIRD utah territory REGULAR ItE gular aULAR SEPTEMBER TERM 1871 HON JAMES B MCKEAN mckeam judge TERRITORY OF UTAH tas las to county of salt lake I 1 arom tou TOM T TP patrick atrick united states marshal for the territory of utah utah greeting yoa y yon are hereby commanded to summon awen twenty ty three good and lawful men residents of th the T third thira rd judicial district to be and appear at tm tuo united states court 1 in salt lake olty city on monday the ISM day of september dinst at 10 am sm to serve berve e as grand jurors for the third judicial district of the territory of utah thereof fall not and make due return of this venire ventre with the panel thereon endorsed witness the kion hon james B mckean judge Tadge ana and nd the seal of said court at salt lake city this lilii day of septen septer september uber uben 1871 WILLIAM B WALKER clerk that said sald venire wan was delivered toone to one M T patrick united states marshal selected and summoned the following named persons b virtue of said writ of venire the return of bald saia said marshal being in v w and figures to wit 1 11 I hereby return the within ventre venire having summoned from the body of the said asti district lel let of utah thu following named persons to serve as grand jurors I 1 sharp walker 2 samuel kahn aj 2 J milton billion orr 4 nichols 5 charles L dahler 8 6 hiram 6 clawson 7 elias ellas B zabriskie 8 james Towns townsend eda edd 9 edwin D I 1 woolley 10 alfred 8 gould 11 II frant franu D ollit clift 12 J T miller 13 G li T harrlson harrison 14 geo goo Q cannon IS 15 christopher delhi IS 16 james jernes P page 17 james mathews 18 19 frank hurlburt 19 samuel howe 20 charles New baldt 21 nelson lawrence 22 21 ccarles Tro trobridge bridge briage 2 23 edward ried bied M TI PATRICK U S Ha marshal marshai rahal sept 18 1874 that said seid jurors we were re called by the clerk of said district court anthe on ibe the day ef depte ber 1871 in open coult couig and the following per m sons answered to their names viz sharps sharp B walker J JT T miller alfred 8 gould chauncy nichols J milton orr eltas ellas L LT T Harr harrlson igme iame eltas ellas B zabriskie james townsend gea geo Q cannon christopher diehl diehi hiram B clawson samuel james mathewson james P page samuel howe frank hurl Hari hurlburt burt nelson lawrence charles New Now baldt edward boward reid samuel rahn nahn that the following were excused sharp SW S alker walker ed ward ries ried samuel kahn alfred 8 gould J milton orr george Q cannon cennon elias ellas B zabriskie james townsend christopher diehl diehi hiram B clawson nelson lawrence it was then ordered by the court that tales men be summoned to nill fill out said jury when the following persons were selected and summoned promiscuously from the body of the county by the united states marshal as tales men and answered in court viz charles ried clayton L cayeres Ha yeres hugh white edward preble james M day william S woodhull william M johns Alph alphonzo olizo F tilden john W morehouse jacob engler J B meader ezra 0 chase john at wallace J james es W hamilton geo W bostwick thomas thomes car ar ter and john the following Tales tai Tal esmen nien were then excused geo goo W bostwick thomas carter and john cannington the following persons were then 61 sworn dmn and charged as a grand jury to wit bramuel samuel howe chaancey chauncey C nichols J JT T miller elias ellas L LT T harrlson harrison james P page james mathewson ma ewson frank hurlburt charles oharles new baldt clayton L haynes baynes hugh white edward james 31 day william L woodhull william M johns alphonza F tilden john jehn W morehouse jacob engler eugier J B meader edrad ebra ezra 0 chase john M U wallace chas alas ried and rua jarn jara james es r am idail arida ba n gi 17 eben b by mes ves whom t dim to the found d pr esen l sealed d in this case I 4 6 1 1 vj that said jurors g were elected selected b by th the 0 united states stapes being inase selected in accordance with the territorial lawm that they were sum monedi bythe sat rat raid untied nit ed states marshal and not by either the territorial marshal or sheriff as required by bv said territorial laws lawn that said bald jr jurors bors and selected selecta J chosen des deb and called by said united states marshal promiscuously and not beany by any drawing draw lne or ballot as prescribed by the laws of said baid territory and in contravention of each and every section of the I 1 laws aws of said slid territory prescribing the manner of drawing selecting and aad obtaining jurors to 10 serve in the district courts coneta of sald eald T territory that said sald jurors and anil Tal esmen were not selected summoned or called in accordance with the provisions ot of any act of congress of the united antte Sta in accordance with wilh the arao alee or roles rules of any court of the united states or gr in accordance with any ruie rule of this conru conic that one charles reid had been summoned attended and served as a juror in this court in the september term A D 1870 and within two years prior to the time said grand jury by whom the indictment in this case was found was em empanel paneled edhe ho the said charles reid beld being the same person above named and who was sworn and served on the said eald grand jury by whom the indictment herein was presented contrary mT to the act of entitled an act to provide for the COM oom compensation as of grand and petit jurors in the ai circuit r acutt and district courts of the united states and for other purva pardo purposes es approved july ath 1870 that one james harrison harrlson and one eliad etlas L T harrlson Har rleon were and sworn and acted as members of the grandjany grand jury Jary in finding the indictments in this case and that said james tames mathewson Mato ewson and elias ellas LT harrison were never selected or summoned to serve on said eald grand jury by any one or in any manner as appears irom the records in this court that one george B R maxwell was present before sald eald grand jury at the time of finding said indictment that said george K u maxwell was only present in the capacity of deputy united states Attorn attorney ev as appears by the record of this court the legality of which appointment the said affiant denies was not sworn or otherwise present as a witness and that he was an unauthorized person and was illegally before said grand jury that at the time of the of said grand jury this defendant was not under arrest in custody or on ball nor was he charged with crime of any kind prior to the finding of said indictment nor dill dili he have any op opportunity at any earlier date than the present coln to interpose any challenge to said grand jury or either owsald jurors and this the said brigham young is ready to verify wherefore he prays judgment of said indictment and that the same came may be quashed BRIGHAM YOUNG aff county of salt lake S brigham Brig hamo haro yoube young being duly sworn says he is the defendant in the above case that he has read the above and foregoing plea and knows the contents thereof and that the same sanne is true in substance and matteis matters of fact to the best beat best of his knowledge and belle belief BRIGHAM YOUNG youna subscribed and dworn sworn to before me ine this ath day of october AD 1871 WM WW 8 walk WALKER ER cile cilk V t rj ty ril fil 1 T I 1 TERRITORY OF UTAH h THIRD DISTRICT COURT the people of the 1 united states in the september term 1871 territory of utah salt lake city vs Brigha mYoung J of 01 no M mm 1111 iii eau STATEMENT the defendant is indicted for lewd and who wao lascivious ivIous association and cohabitation with sixteen women not bein being m married to th them the indictment is under the tho following 1 ug statute if any man or woman not being mar ri edco each other lewdly and lasciviously associate and cohabit together 0 every such buch person so offending shall be punished by imprisonment not exceeding ten ted years and not less than six eix months and fined not more than one thousand dollars and not less lesa than one hundred dollars or both at the discretion of the court coart 11 laws of utah p 63 sec sm 32 the indictment contains sixteen counts and charges as aa many of fences extend ing from the year 1854 1851 to the present time there being no statute of limitations the defendant moves to quash this indictment on the following grounds 16 first that in ia said indictment as appears upon the face thereof this defendant is charged charge cT with sixteen distinct and different felonies alleged to have been committed at sixteen different times and places with sixteen different persons the same not being different parts of one offense nor different statements of the same of fence or such alleged felonies being in any wise connected with each other and 2nd that each and every count of said indictment as appears upon the baca faca thereof is vague uncertain and indefinite in the allegation as to time when said offen ces or any of them were committed B R M baskin U S attorney anda and 0 K R maxwell for the peo people le fitch and mann hempstead and kirkpatrick snow ana and hodge A miner legrand young and hosea stout for the defendant fen dant C J 3 although the question of pel pol selecting acting summoning and the grand jury whick which which presented the indictment is not involved in the motion before the court one oj of the counsel for the defendant saw fit in his remarks 1 to denounce the jury as having been heen selected andem and annealed in n manner cedon ce dented teT had the counsel trat investigated this question be he would have lave found that hat brigham jofin young gis ils was wat governor of this genrl Gerri territory tory and his selected friend judge snow now one of his counsel sat upon the district and the reme remo bench of th territory gran grand jurors were for years selected sum summoned boned and precisely as opey now are ana and the counsel would also aiso have found that in reported cases united states judges even within the states have sometimes found the state statutes inapplicable and have ordered juries to be bej procured red substantially ly as they are procured in this ter but all this has nothing to lo 10 do with the motion benore before the court the motion to quash assails the indictment bot hot the grand jury juny that thap found it ua retba hujet Us ittu r ro therefore to the record one of the counsel for the defendant lias rightly said tuat the court should render such a decision upon this ibis motion as shall the interests of the pub publio ilo lie and the rights of the defendant what are thos those interests what are those rights it is agreed by counsel on both loth sides that at common law the court might either grant or refuse this motion in the exercise of a sound discretion many authorities were cited on the argument sustaining this proposition ion lon one of the counsel tor for the defendants sought to account for the fact that there seems to be a preponderance of authority against the granting of such motion to quash by conjecturing that when such motions are granted they are aro not often reported he also urged that this court is not bound to respect any decisions rendered outside of this territory unless they be rendered by the supreme court of the united states without pausing now to consider these arguments let us proceed to enquire what are the interests of the public and the rights ot of the defendant as involved in this motion it is unquestionably to the interest of the public that a man indicted for crime if guilty should be convicted if innocent acquitted and that too with as little delay as may be consistent with the rights of the accused and with those safeguards bards which experience haa baa approved gut tut but will it promote the interests and rights either of the public or of an accused citizen to have many indictments and many trials for offenses of the same class rather than one indictment and one triai trial covering the whole the court ia is bound to presume that the evidence before the tho grand jury authorized nay required the sixteen charges contained in this indictment if now the tite court should grant the motion of the lb e defendant kud and quash the indictment because it contains these sixteen counts the grand J jury ury nry which ignot yet discharged would bo be in duty bound to nind find sixteen new nev indictments or lf t the 4 court should compel the prosecution to elect to go to t rial trial on some one count only striking out the others then the grand jury would be 11 in a duty bound to nind find fifteen new indictments dic ments thus in either event the defendant would be subjected to sixteen indictments and sixteen trials how this could promote the interests and rights either of the public ioor loor or of the defendant it is not easy to perceive nay it is difficult to imagine anything more harassing and vexatious to the defendant indeed the learned counsel for the defendant failed to show wherein this would be any favor to their client had sixteen indictments been found in the first instance instead of one could not the defend defendants anea anVa counsel urge with irresistible arguments that they should be consolidated but is there not some legislation bearing upon this question by act of congress approved february 28 26 A D 1853 it is provided ap vi led tea that whenever there are or shall be several charges against any person 0 or r persons for the same act or transaction 0 or r for two or more acts sets or transactions connected together or for two or more acts or transactions of the gane sane class clawge of |
